Dear Mr. Gerrish,

Thank you for your e-mail inquiry of 17 September 2009.

The Government recognises the importance of family members taking care of children who cannot be cared for by their parents.  We know that a child brought up by a family member benefits from living with someone they already know and trust rather than a stranger.  The Children Act 1989 placed a duty on local authorities to support the upbringing of children by their families wherever possible, and that services should be provided to children in need and their families to enable this to happen.

You have suggested parents and relatives may be frightened into silence. I can assure you that there are important safeguards built into the system to ensure that decision making is fair, and that all parties are fairly represented.  Courts are required to place the welfare of the child at the heart of family proceedings. Indeed, the Children Act 1989 established what has become known as the “paramountcy principle” where s1 (1) of the Act simply states that when determining any question relating to the upbringing of a child or its property or income, “the child's welfare shall be the court's paramount consideration”.

Unfortunately, some children are harmed by the people who should be caring for them and it is important that systems are in place to prevent harm where possible, and to remove children from harmful situations.  There are many dedicated professionals working across the country to protect children from harm. 

There is now an increased focus on the steps that must be taken prior to any court proceedings. Unless it is necessary to take emergency action to protect a child from immediate harm, the local authority must undertake various steps before initiating care proceedings.

In situations where a child is identified as suffering, or at risk of suffering, significant harm, the local authority has a statutory duty to intervene, to undertake child protection enquiries, and to take action to safeguard and promote the child's welfare.

As part of the pre-proceedings work, a local authority can issue a letter before proceedings (known in some authorities as a `letter before action'). This letter must include a notification of the intention to issue care proceedings, a summary of the authority's concerns and an invitation for the parents and their legal representative(s) to attend a pre-proceedings meeting. The letter is the trigger for legal aid funding to be released to the parents' solicitor. The intention of the letter is that parents are involved in the process from the start and, although the letter shows the intention of the authority to take proceedings, it should be used by the authority to give the parents a final chance to change their behaviour before proceedings are initiated.

The decision to take a child into care is never an easy one, and it is a decision that is taken by the courts, and not by individual social workers.  In every case where a child is taken into care on a care order, the courts will have considered all the evidence and taken the view that the child has been significantly harmed, or would be if they were not taken into care. 

Where the court makes an order placing a child in the care of a local authority, the authority will continue to work with the family with a view to the child returning home.  However a stage may be reached when it is apparent that the child cannot return home.  It is at this stage that the local authority must make alternative plans to provide the child with a permanent family home. Adoption is one way of providing this and is appropriate for some children, depending on the facts of each individual case.  The final decision on adoption rests with the courts. Before a court makes such an important decision it must be convinced, on the basis of the evidence, that this is the best way to meet the child's needs on a long-term basis. 

To assist the court, a children's guardian (who is independent of the local authority) is appointed to advise what is in the child's best interests. Their job involves meeting the child, the parents and other members of the family. They also meet the child's teacher, social worker and doctor. They will then write a report for the court stating what they think is best for the child. Where the court makes an order placing a child in the care of a local authority, the authority will continue to work with the family with a view to the child returning home.

Regulations also require all local authorities to appoint an Independent Reviewing Officer (IRO) who is responsible for monitoring the quality of the local authority's care planning. They ensure that in every care plan due consideration is given to the child's wishes and feelings. The local authority will need to take the views of the IRO on the quality of planning into account in formulating the final care plan to be put to the court.

Where children cannot return to live with their birth parents, placing them with family members is to be considered but it is not always the right option for the child. The local authority must make alternative plans to provide the child with a permanent family home; adoption is one way of providing this and is appropriate for some, but not all, children.

Before a child can go to live with adoptive parents, each birth parent or guardian must give their consent to the placement and later to the adoption. Where consent is not given the local authority must apply to the court for permission to place the child for adoption; this is called a placement order.

The placement order gives the local authority the ability to place the child with adopters named in the application or to any adopter(s) chosen by the local authority.

When the child's new family wishes to formally adopt the child they must apply to the court for an adoption order. In considering the application, the court must again consider all the alternative options open to it, including returning the child to their birth parents. 

Each of the child's parents or guardian must consent to the child being adopted. Again, where parental consent is not given, the court will need to be sure that the welfare of the child is such that consent be dispensed with.

If a child is placed with a family member by the local authority (i.e. the local authority was involved in the arrangements), and so is a looked after child in the care of the local authority, the family member must be formally approved as a local authority foster carer. To take on this role, the carer must be assessed, regardless of their background.

Foster carers should receive an allowance to cover the costs of caring for the child set at least at the national minimum rate. Any additional payments to foster carers must be determined in accordance with criteria that do not discriminate between carers who have a prior relationship with the child and those who do not.

Where a child is living with a relative but the local authority was not involved in arranging the placement and the child is not a looked after child, the situation is different. Unlike for foster carers, where the cost of maintaining the child is paid by the local authority via the fostering allowance, anyone caring for a child who is not in the care of the local authority is entitled to claim child benefit and to apply for Child Tax Credits (CTC), subject to the usual eligibility criteria.

Where a child is assessed by the local authority as being in need, the authority may provide services under section 17 of the Children Act 1989 to safeguard and promote the child's welfare and, where consistent with that duty, to promote their upbringing by their family. The Children and Young Persons Act 2009 amended section 17 to allow local authorities greater flexibility in providing appropriate financial aid to support the welfare and upbringing, by their families, of children in need.  Currently, section 17 only allows financial support to be provided in `exceptional circumstances'.  The amendment will allow local authorities to provide regular, long term financial support if this is assessed to be appropriate.

You have also said in your email that the family courts are hidden from scrutiny and that you are concerned about the ability of parents to speak out about their case. The extent to which a parent, child or the media can publish information about individual court cases involving children is complex and determined by a number of different aspects of legislation. The issue is the need to balance the rights of children to privacy, with the rights of other parties, and those of the media, in relation to freedom of expression. 

The Government has already taken some action to make family proceedings more open - as you point out, the media can attend most proceedings, and the rules about disclosure of information have been amended to make it easier for people to seek the help and support they need.  

These changes do not yet apply to adoption cases. Adoption is the most difficult and life-changing decision a family court can make and needs special consideration. There are concerns that the identity of children and adoptive parents might be exposed. We are considering, along with others involved in adoption work, how proceedings can be made more open while still protecting the privacy of those involved.

You state that the approved media attending family cases in general cannot be classed as transparent. Media wishing to attend family proceedings must be accredited using the existing Press Card Scheme. This is not a new approval process that we have implemented for attendance at family proceedings but rather an extension of an existing accreditation scheme which has been in existence since 1993, which is used by the Metropolitan Police to verify bona fide journalists in relation to reporting on terrorism. A UK press card is not easily obtained and the applicant has to pay a fee. All press card applications are considered by the independent UK Press Card Authority, and not the Ministry of Justice or Her Majesty's Courts Service. By using an already established scheme, we are confident that only responsible journalists will attend family proceedings and will report accurately, insuring greater knowledge and transparency.

Your final concern involved the definition of “emotional abuse.” In “Working Together to Safeguard Children” the Department of Health defines emotional abuse as “the persistent emotional ill-treatment of a child such as to cause severe and persistent adverse effects on the child's emotional development”. It may involve conveying to children they are worthless or unloved, inadequate, or valued only insofar as they meet the needs of another person. It may feature age or developmentally inappropriate expectations being imposed on children. It may involve causing children frequently to feel frightened or in danger, or the exploitation or corruption of children.

The quality of care given to a child will be compared with what it would be reasonable to expect a parent to give the child. Care includes responsibility for making proper provision for the child's health and welfare (including promoting their physical, intellectual, emotional, social and behavioural development) and not just meeting basic survival needs.

A local authority may apply for a care or supervision order if it considers that the threshold criteria are established. S.31 (2) of the Children Act 1989 sets out the threshold criteria. A court has no power to make a care or supervision order in favour of a local authority unless, as a matter of fact, it is satisfied that:

(a) the child concerned is suffering, or is likely to suffer, significant harm, and

(b) that the harm or likelihood of harm is attributable to either

or

Harm includes impairment from seeing or hearing the ill treatment of another.

The court will only act on evidence and will make findings of fact about whether the child is suffering significant harm. If the local authority have reasonable cause to suspect that a child is suffering significant harm they will make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote a child's welfare. The court has to establish that it is more probable that the fact(s) in question occurred than they did not. Mere suspicions are not sufficient. It has to be shown that the child is or is likely to suffer significant harm, with significant being the key word. The harm has to be due to unreasonable parenting i.e. parents not giving the care it would be reasonable for a parent to give that child.

Only once the court is satisfied that this threshold has been established does the court have the power to make a care or supervision order.

Finding that threshold is met does not mean that the court must automatically make a care order. Once threshold is established, the court will then go on to hear argument and evidence to determine what order is in the best interests of the child with regard to the welfare checklist set out in section 1 of the Children Act 1989. This might be a care or supervision order or, for example, where a suitable kinship carer has been identified, it might be a residence order. The final outcome may also be an order of “No Order” where the court believes that the interests of the child would be best served by no order being made.

I hope this has managed to answer your concerns. As you can see, the process the local authority and court go through prior to an adoption is lengthy, thorough, and contains many safeguards. Independent officers such as the IRO and Child's Guardian are involved at every step to make sure the child and family have their voices heard. The judge's role is then one of an impartial finder of fact who uses the law to guide decisions. Finally, while the Government understands the privacy that must be protected in family court hearings, it is also striving to open them up and better inform the public.

Yours Sincerely,

Matthew Gill

Care Proceedings Programme

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